Citation Nr: 21066755 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-31 309 DATE: November 2, 2021 ORDER Service connection for a cervical spine disability is granted. REMANDED Service connection for sleep apnea is remanded. A compensable rating for left ear hearing loss is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran has experienced continuity of cervical spine symptomatology since service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1981 to March 2002. In a January 2020 decision, the Board of Veterans' Appeals (Board) denied his claims for service connection for a cervical spine disability and sleep apnea, a compensable rating for left ear hearing loss, and a TDIU. He then appealed to the Court of Appeals for Veterans Claims, which granted a joint motion in October 2020 to vacate the Board's decision and remand for readjudication. The parties to the joint motion for remand agreed that the Veteran and his representative did not receive adequate notice of the Board hearing scheduled for November 2019. As a result, he did not appear for the 2019 hearing. The parties agreed that remand for a new hearing was required. On remand, the Veteran and his spouse ("N.G.") testified before the undesigned Veterans Law Judge at an August 2021 virtual hearing. A copy of the hearing transcript is in the claims file. Service connection for a cervical spine disability The Veteran attributes his cervical spine disability to various incidents in service, including parachute jump injuries. At hearing, he testified that he has had ongoing neck problems since service. After careful review, the Board finds that service connection is warranted based on continuity of symptomatology. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection may be established for certain chronic diseases, including arthritis, which manifest to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. When a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. In this case, a November 2012 VA examination revealed arthritis of the cervical spine, as well as a history of C5-6 fusion surgery. However, the 2012 examiner determined the Veteran's disability was less likely than not incurred in or caused by service. Essentially, this nexus opinion is based on the examiner's finding that there was "no objective evidence" of a cervical spine condition during service or trauma severe enough to have caused his current condition. While the examiner noted his contention that the disability is related to parachute jumps, the examiner did not discuss his complaints of chronic neck pain since 2002 (i.e., the year of separation from service), which led to surgery in 2007. These complaints are documented in VA treatment records from 2010. A VA examiner must address the Veteran's lay statements to provide the Board with an adequate medical opinion. Miller v. Wilkie, 32 Vet. App. 249, 25960 (2020). The Board finds that the 2012 examiner overlooked favorable lay evidence, and improperly based their opinion on the lack of "objective" evidence in the service treatment records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Consequently, the November 2012 opinion is inadequate to decide the claim. The lay evidence here is sufficient to establish continuity of symptomatology, even without an adequate nexus opinion. See Walker, 708 F.3d at 1339 (describing the more relaxed evidentiary standard for service connection for chronic diseases). The Veteran testified that he sought treatment for his "entire back," including his neck, midback and low back, during service, and he received "probably Motrin" at the time. He testified that he began seeing a private orthopedic surgeon for his spinal problems in 2002; this physician prescribed painkillers and recommended surgery. As a layperson, the Veteran is competent to report subjective symptoms like neck pain and his personal medical history. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His hearing testimony is generally consistent with other evidence on file, including the medical records showing a reported history of neck pain since 2002 and cervical spine surgery in 2007. The Board finds this evidence credible and highly probative. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Resolving all reasonable doubt in his favor, the Board finds that the Veteran has experienced continuity of cervical spine symptomatology since service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection is granted. REASONS FOR REMAND 1. Service connection for sleep apnea is remanded. The Veteran asserts that he had symptoms of sleep apnea during service. Specifically, he testified at hearing that he "was snoring [and] would shake awake." He stated he was first diagnosed with sleep apnea in 2006, and he has used a CPAP device since then. N.G., his spouse of 27 years, offered similar testimony. The record shows that the Veteran received a VA examination for sleep apnea in November 2012. However, the 2012 examiner did not provide a nexus opinion because there was "no objective evidence" of sleep apnea, despite the Veteran's similar report at the examination of a prior diagnosis in 2006. Subsequent medical records, including a non-VA sleep study from October 2013, confirm that the Veteran has obstructive sleep apnea. In light of the evidence above, the Board finds that remand to the agency of original jurisdiction (AOJ) for a new VA examination is warranted. On remand, the examiner must consider and discuss the Veteran's testimony concerning in-service sleep symptoms, including snoring and "shaking awake," as well as his reports of an initial sleep apnea diagnosis and CPAP prescription in 2006. Additionally, the Veteran's testimony suggests there are relevant, outstanding private treatment records that are not on file. The AOJ should attempt to obtain any such records and make them available to the examiner. 2. A compensable rating for left ear hearing loss is remanded. The Veteran seeks a compensable rating for service-connected left ear hearing loss. At hearing, he testified that his hearing has worsened since his last VA ear examination in March 2017. Because the most recent examination on file is over four years old, and it may not accurately reflect the current severity of the disability, the Board finds that remand to the AOJ for a new examination is warranted. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. A TDIU is remanded. At hearing, the Veteran testified that multiple service-connected disabilities, including hearing loss, have prevented him from performing full-time, competitive work since 2006. His TDIU claim is therefore "inextricably intertwined" with the hearing loss increased rating claim, and remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the onset and etiology of his sleep apnea. After reviewing the claims file, the examiner must address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was incurred in or is otherwise related to service. The examiner must consider and discuss the Veteran's testimony concerning in-service sleep symptoms, including snoring and "shaking awake," as well as his reports of an initial sleep apnea diagnosis and CPAP prescription in 2006. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Review the examination reports and medical opinion(s) above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 5. Readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.